Funck v. State, S14A1293.

• Decision Date: 20 January 2015
• Docket Number: No. S14A1293.,S14A1293.
• Citation: 768 S.E.2d 468,296 Ga. 371
• Parties: FUNCK v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 371

768 S.E.2d 468

FUNCK

v.The STATE.

No. S14A1293.

Supreme Court of Georgia.

Jan. 20, 2015.

Gabriel Thomas Cliett, Metter, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Asst. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Atlanta, Madonna Marie Little, Asst. Dist. Atty., Rebecca Ashley Wright, Dist. Atty., Augusta, for appellee.

Opinion

HINES, Presiding Justice.

Following the denial of his motion for new trial, as amended, Marcus Funck appeals his conviction for felony murder while in the commission of criminal attempt to possess cocaine in connection with the death of Charles Johnson. Funck complains of a ruling regarding the cross-examination of his co-indictee, that he was allegedly required to wear prison garb at his trial, and that his trial counsel was ineffective. Finding the challenges to be without merit, we affirm.¹

The evidence construed in favor of the verdict showed the following.

On August 18, 2006, Funck and his girlfriend, Morse, borrowed a van from a friend, Paz–Sanchez. They wanted to obtain crack cocaine, and planned to get the money to purchase it by selling a stolen remote control to a drug dealer. Unsuccessful in selling or pawning the stolen item, and having no money to purchase the drugs, the pair decided they would find someone who would sell them cocaine and after receiving the drugs drive off without paying. They had previously used this method to obtain drugs.

Morse and Funck spied Johnson walking downtown and asked him where they could purchase crack cocaine, telling him that they wanted to purchase $50 worth. Johnson went to get the drugs while Funck and Morse waited in the van. Five or ten minutes later, Johnson returned to the van, which was running, and handed Funck the drugs. Funck then twice ordered Morse, who was driving, “to go, go.” As Morse started driving away, Johnson hung onto the side of the van. Funck then kicked Johnson off the side of the van by putting his feet through the open van window. Morse heard and then felt a “thump”; fearing that she might have hit a person, she muttered, “[O]h God” and started to slow down the van. But Funck assured her that Johnson was okay and told her to drive on, which she did.

Morse and Funck washed the van and returned it to Paz–Sanchez. Morse told Paz–Sanchez that they had obtained crack cocaine and that Funck had punched a man that tried to jump on the side of the van.

At the time of the fatal impact, a long-time resident of Johnson's neighborhood who knew Johnson heard “hollering” and went to investigate. This man saw Johnson's shoe in the middle of the street and then saw Johnson himself lying in the street. He saw that Johnson was not breathing and called for an ambulance. Johnson was dead at the scene. There was a drag mark from the sole of the shoe leading up to the lone shoe in the road and then another drag mark going from the shoe to Johnson's body.

Later that night, Morse heard on the news that there had been a fatality, and once she realized that Johnson had died, she expressed her fear and concern to Funck, and he responded, “[T]hat's just one less n–––––.” Morse wanted to turn herself in to the police, but Funck told her not to. Funck told a friend about what had happened, saying that after they got the crack cocaine and “ripped [Johnson] off,” Johnson jumped on the van and Funck and Morse “took off,” and when they “got to a certain speed,” i.e., about 40 miles per hour, Funck “threw [Johnson] off” and “he went up under the [van].”

Johnson died as the result of multiple blunt force trauma to his head

, neck, and anterior torso.

1. Funck contends that his conviction should be reversed because his trial counsel was “per se” ineffective for failing to timely file a valid demurrer to the indictment, i.e., within ten days of arraignment,² in that the felony murder charge is based upon the charge of criminal attempt to possess cocaine, which is not inherently dangerous or life-threatening so as to be a valid underlying felony as a matter of law and under the circumstances of this case.

In order for Funck to prevail on his claim of the ineffectiveness of his trial counsel, he has to demonstrate, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that his counsel's performance was deficient and that, but for such deficiency, there is a reasonable probability of a more favorable outcome at trial. Allen v. State, 293 Ga. 626, 627(2), 748 S.E.2d 881 (2013). To satisfy the first prong of Strickland, Funck has to overcome the strong presumption that his trial counsel's performance was within the broad range of reasonable professional conduct; the reasonableness of such conduct is assessed from counsel's perspective at the time of trial and under the particular circumstances then existing in the case. Id. The second prong of Strickland requires that Funck demonstrate the reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. Funck cannot meet his burden under Strickland.

On the final day of trial, Funck's counsel did in fact move the court for what counsel termed a “special demurrer” to the indictment and for a directed verdict of acquittal, arguing that the underlying felony of criminal attempt to possess cocaine was “not dangerous per se” or inherently dangerous under the evidence at trial. However, the indictment plainly and with specificity charged the offense of felony murder while in the commission of the felony of criminal attempt to possess cocaine as the proximate cause of Johnson's death.³ The criminal attempt to possess cocaine can be used as the underlying felony for a felony murder conviction. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012). Therefore, the felony murder charge was not subject to either a pretrial general or special demurrer. See State v. Wyatt, 295 Ga. 257, 759 S.E.2d 500 (2014). Indeed,

the only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life. For a felony to be considered inherently dangerous, it must be dangerous per se or it must by its circumstances create a foreseeable risk of death. In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.

Chance v. State at 242, 728 S.E.2d 635. (Citation and punctuation omitted.) The circumstances of this case well illustrate the validity of a charge of felony murder premised upon the criminal attempt to possess cocaine. Funck and Morse's plan to obtain cocaine by robbing the supplier of the drugs, and such plan going awry, was the proximate cause of Johnson's death. Therefore, the committed felony of criminal attempt to possess cocaine directly and materially contributed to the subsequent immediate cause of the death. Davis v. State, 290 Ga. 757, 760(4), 725 S.E.2d 280 (2012). Furthermore, the plan to rob an individual dealing in illegal drugs carried with it a foreseeable risk of danger and death. Id.

Thus, even a timely pretrial demurrer to the indictment on the basis urged would not have been successful. The failure to make a meritless motion cannot provide the basis upon which to find ineffective assistance of counsel. Hampton v. State, 295 Ga. 665, 763 S.E.2d 467 (2014). Consequently, Funck's claim of his trial counsel being ineffective in this regard cannot prevail.

2. As to the evidence at trial, it was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Funck was guilty of the felony murder of Johnson. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Funck next claims error in a ruling by the trial court allegedly limiting his attorney's ability to cross-examine Morse, who testified as a State's witness, about any deals she may have reached with the State. But, the complaint is unavailing.

Immediately before trial, there was a hearing on several defense motions. At this hearing, Funck's counsel argued that because certain language regarding the waiver of sentence modification, new trial, and the right to appeal had been crossed out in Morse's plea sentencing sheet, counsel suspected that there was an agreement with Morse that in exchange for her testimony against Funck, Morse's sentence might be modified or her plea agreement be “remolded.” The prosecutor responded that there was no agreement as to any “remold,” and that the plea agreement was for a 20–year sentence for manslaughter. The agreement...